Ostler Candy Co.

National Labor Relations Board - Board Decisions

Feb 21, 1938

5 N.L.R.B. 554 (N.L.R.B. 1938)

In the Matter of OSTLER CANDY COMPANY, A CORPORATION and CANDY
WoRiERs' LOCAL No. 373
Case No. R-528.-Decided February 21, 1938
Candy Manufacturing Industry-Investigation of Representatives : contro-
versy concerning representation of employees : refusal of employer to recognize
and bargain with petitioning union until question of representation is deter-
mined by Board-Unit Approp2iate for Collective Bargaining: all plant em-
ployees, excluding foremen, office and clerical help, and employees of the ship-
ping and delivery department ; no controversy as to-Representatives : proof of
choice : membership in union ; certified list of names copied from official
ledger of union ; comparison of with employment records-Certification of
Representatives : upon proof of majority representation.
Mr. Charles A. Graham, for the Board.
Mr. Oscar W. Carlson, of Salt Lake City, Utah, for the Company.
Mr. A. George Koplow, of counsel to the Board.
DECISION
AND
CERTIFICATION OF REPRESENTATIVES
STATEMENT, OF THE CASE
On November 9, 1937, Candy Workers' Local No. 373, Bakery and
-Confectionery Workers' International Union of America,' herein
called the Union, filed with the Regional Director for the Twenty-
second Region (Denver, Colorado) a petition alleging that a question
affecting commerce had arisen concerning the representation of em-
ployees of Ostler Candy Company, a corporation, Salt Lake City,
Utah, herein called the Company, and requesting an investigation
and certification of representatives pursuant to Section 9 (c) of the
National Labor Relations Act, 49 Stat. 449, herein called the Act.
On December 9, 1937, the National Labor Relations Board, herein
called the Board, acting pursuant to Section 9 (c) of the Act and
Article III, Section 3, of National Labor Relations Board Rules
and Regulations-Series 1, as amended, ordered an investigation and
authorized the Regional Director to conduct it and to provide for
an appropriate hearing upon due notice.
i The pleadings incorrectly designated the Union as Candy Workers ' Local No. 373.
554
DECISIONS AND ORDERS 555
On December 11, 1937, the Regional Director issued a notice of
hearing, copies of which were duly served upon the Company and
upon the Union. Pursuant to the notice, a hearing was held on
December 17, 1937, at Salt Lake City, Utah, before Albert L. Lohm,
the Trial Examiner duly designated by the Board. The Board and
the Company were represented by counsel and participated in the
hearing. Representatives of the Union participated in the hearing
as witnesses. Full opportunity to be heard, to examine and to cross-
-examine witnesses, and to introduce evidence bearing on the issues
was afforded all parties. During the course of the hearing the Trial
Examiner made several rulings on motions and on objections to the
admission of evidence. The Board has reviewed the rulings of the
Trial Examiner and finds that no prejudicial errors were committed.
The rulings are hereby affirmed.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The Ostler Candy Company is a corporation engaged in the manu-
facture and sale of candy. Its plant is located at Salt Lake City,
Utah.
The total gross business of the Company in 1936 was between
$60,000 and $150,000. The principal materials used by the Company
are sugar, butter, eggs, condensed milk, cream, corn-syrup, cocoa
beans, nut meats, flavorings, candied and preserved fruits, cardboard,
ribbon, and paper.
Approximately 70 per cent (in terms of monetary value) of the
materials used come from outside the State of Utah, and approxi-
mately 40 per cent (in terms of monetary value) of the products are
shipped outside the State of Utah.
II. THE ORGANIZATION INVOLVED
Candy Workers' Local No. 373, Bakery and Confectionery Workers'
International Union of America, is a labor organization affiliated
with the American Federation of Labor.
The Union admits to membership all plant employees engaged in
the manufacture of confections. This includes persons who deal with
the product through the point where it is placed in the consumer car-
ton. It does not include warehousemen, truck drivers, or persons
packing the cartons for shipment. The Union also has no jurisdic-
tion over salesmen, supervisors, or office and clerical employees.
III. THE QUESTION CONCERNING REPRESENTATION
The Union's organizational work among the Company's employees
started in April or May 1937. It was granted a charter in June
556 NATIONAL LABOR RELATIONS BOARD
1937, by Bakery and Confectionery Workers' International Union of
America.
At the hearing, by stipulation between counsel for the Board and
counsel for the Company, the following facts were agreed upon : On
October 29, 1937, a representative of the Union approached the Com-
pany's counsel on the question of collective bargaining, after having
been referred to counsel by the Company. It was then arranged to,
have the Utah Industrial Commission check the Union membership
against the Company pay roll to determine whether the Union rep-
resented a majority of the employees of the Company. Shortly there-
after, the Union received information that the attorney for the Com-
pany had notified the Utah Industrial Commission that there was,
some doubt as to the jurisdiction of the Commission because of the
interstate nature of the Company's business. As a result, on Novem-
ber 9, 1937, before the results of the Commission's check were known,
the Union filed a petition for certification by the Board. After filing
the petition the Union attempted to gain the consent of the Company, .
through its counsel, to the holding of a consent election by the Board,
but this consent was not obtained.
On November 12, 1937, the Commission reported a majority-of em-
ployees in the Company as having, by joining the Union, designated
the Union as their representative for collective bargaining. Ap-
proximately three weeks later there was another conference between
the Company's counsel and the Union's representative, at which time
counsel for the Company stated his belief that the best procedure
would be a hearing under the petition of November 9, 1937.
At the hearing the Company offered to stipulate that a secret ballot
be taken by the Board, and that the unit claimed by the Union be,
considered an appropriate unit for the purposes of such a ballot.
The proffered stipulation was not accepted.
We find that a question has arisen concerning the representation
of employees of the Company.
IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON
a COMMERCE
We find that the question concerning representation which has
arisen, occurring in connection with the operations of the Company
described in Section I above, has a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States,
and tends to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE APPROPRIATE UNIT
The Union in its petition claimed that all plant employees with
the exception of foremen, office and clerical help, constitute a unit
DECISIONS AND ORDERS 557
appropriate for the purposes of collective bargaining. The Com-
pany makes no objection to the unit claimed by the Union to be
appropriate. This unit excludes all employees in the shipping and
delivery department, the Union not classifying them as plant em-
ployees, since they deal with the finished product after it has been
placed in its consumer carton. The exclusion of the shipping and
delivery department employees is not unreasonable, is desired by
the petitioner, and is not objected to by the respondent.
We find that all plant employees of the Company with the excep-
tion of foremen, office and clerical help, and employees of the ship-
ping and delivery department, constitute a unit appropriate for the
purposes of collective bargaining and that said unit will insure to
employees of the Company the full benefit of their right to self-
organization and to collective bargaining and otherwise effectuate
the policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
The pay-roll list 2 shows 37 persons in the employ of the Company
on November 9, 1937, the date the Union filed its petition with the
Regional Director. Testimony at the hearing shows 17 employees
to be outside the unit found to be appropriate, leaving 20 persons
in the appropriate unit.
At the hearing the Board introduced a list 3 of 15 names certified
by a notary public as having been copied from the official ledger of
the Union. No objection was made to the introduction of this list
in evidence or to the authenticity of the names on it. At the hearing
no check was made of the list of Company employees of November
9, 1937, against the list of Union members. In such' a check made
by the Board, it was found that of the 15 persons named in the
Union membership list, two were not in the employ of the Company
on November 9, 1937. Omitting these two names there is still no
doubt as to the clear membership majority established by the un-
controverted evidence introduced on behalf of the Union.
We find that the Union has been ' designated and selected by a
majority of the employees in the appropriate unit as their repre-
sentative for the purposes of collective bargaining. It is, therefore,
the exclusive representative of all the employees in such unit for
the purposes of collective bargaining, and we will so certify.
Upon the basis of the above findings of fact, and upon the entire
record in the case, the Board makes the following :
'Board's Exhibit No. 2. The pay -roll date of November 9, 1937, furnished by the
Company , was introduced in evidence and was relied on by the parties for purposes of
comparison.
8 Board ' s Exhibit No. 4.
558 NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. A question affecting commerce has arisen concerning the repre-
sentation of employees of Ostler Candy Company, Salt Lake City,
Utah, within the meaning of Section 9 (c) and Section 2 (6) and (7)
of the National Labor Relations Act.
2. All plant employees of Ostler Candy Company, Salt Lake City,
Utah, with the exception of foremen, office and clerical help, and
employees of the shipping and delivery department, constitute a
unit appropriate for the purposes of collective bargaining, within
the meaning of Section 9 (b) of the National Labor Relations Act.
3. Candy Workers' Local No. 373, Bakery and Confectionery
Workers' International Union of America, is the exclusive repre-
sentative of all the employees in such unit for the purposes of
collective bargaining, within the meaning of Section 9 (a) of the
National Labor Relations Act.
CERTIFICATION OF REPRESENTATIVES
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Rela-
tions Act, and pursuant to Article III, Section 8, of National Labor
Relations Board Rules and Regulations-Series 1, as amended,
IT IS HEREBY CERTIFIED that Candy Workers' Local No. 373, Bakery
and Confectionery Workers' International Union of America, has
been designated and selected by a majority of all plant employees
of Ostler Candy Company, Salt Lake City, Utah, with the exception
of foremen, office and clerical help, and employees of the shipping
and delivery department, as their representative for the purposes
of collective bargaining and that, pursuant to the provisions of Sec-
tion 9 (a) of the Act, Candy Workers' Local No. 373, Bakery and
Confectionery Workers' International Union of America, is the ex-
clusive representative of all such employees for the purposes of col-
lective bargaining in respect to rates of pay, wages, hours of em-
ployment, and other conditions of employment.